King County judges: State breath tests in Driving Under the Influence cases are no good

SEATTLE -- Hundreds, if not thousands, of defendants in Washington state's most populous county could find it easier to beat drunken driving charges after a panel of judges determined that there were so many ethical lapses and scientific mistakes at the state toxicology lab that breath-test results should not be admitted at trial.

King County District Court Judges David Steiner, Darrell Phillipson and Mark Chow said the lab's work on breath tests over the past several years cut so many corners as to be completely unreliable. The decision will not only make it easier for defendants in pending cases to beat drunken driving charges, but could allow anyone previously convicted on breath test evidence to appeal.

Prosecutors can still try to win convictions based on other evidence, such as erratic driving and field sobriety tests.

"Simply stated, without the reliable evidence that a correctly functioning breath test instrument can provide, the discovery of the truth in DUI cases suffers," the judges wrote. "The innocent may be wrongly convicted, and the guilty may go free."

The ruling, which followed seven days of testimony and another day of arguments this month, is not binding on the other 18 district judges in the county, but is expected to be highly influential, said Presiding Judge Barbara Linde. The court handles about 5,000 drunken driving cases a year, primarily from stops made in unincorporated King County or on freeways by Washington State Patrol, and the vast majority plead guilty or accept deferred prosecution.

The decision cited a litany of problems with the State Patrol's toxicology lab, including the false certification of solutions used to verify breath tests, the improper rejection of data, mistakenly switched data, and reliance on software that miscalculated data. The judges told prosecutors they could try to get breath tests admitted in cases after they make a showing that the lab's practices have been cleaned up.

"The judges are saying, 'if you wanna play 'CSI,' you've got to make sure you can do it the way 'CSI' does it,' " defense attorney Ted Vosk said, referring to the popular television program. "The science they did at the lab was so sloppy you can have no confidence in any of the results that were obtained."

Vosk said he was one of many defense attorneys around the state who helped cover the more than $25,000 it cost for experts, transcripts and other legal expenses in challenging the lab's work before the King County judges. "This was a challenge to the integrity of our justice system. None of us could have done this on our own," he said.

King County is the third in the state to reconsider the validity of the tests since reports of problems surfaced, and its ruling is the most sweeping. Skagit County judges ruled that although misconduct at the lab was troubling, there was no immediate evidence that the breath tests results were invalid. In Snohomish County, judges threw out the tests in about 40 cases.

Bob Calkins, a spokesman for the State Patrol, said officers typically try to build strong cases against those suspected of drunken driving, so that a conviction doesn't hinge on a breath test. That could limit the impact of the King County decision, he said.

He also said the State Patrol has improved practices at the toxicology lab.

"We look forward to getting back in front of them and showing that their concerns have been resolved," he said.

Mark Larson, King County's chief criminal deputy prosecutor, said no decision had been made about an appeal, but that his office was prepared to continue prosecuting cases "the old-fashioned way."

Ann Marie Gordon, a toxicology lab manager, resigned last summer after a whistleblower reported she had falsely certified quality-assurance samples used in drunken driving breath tests. The prosecutor's office declined to file perjury charges, saying there was no evidence she knowingly swore a false statement.